DLD-032

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 14-2643
___________
ALAN B. FABIAN,
Appellant
v.
WARDEN LEWISBURG USP
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 1-13-cv-00434)
District Judge: Honorable Yvette Kane
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
November 14, 2014
Before: FISHER, SHWARTZ and SLOVITER, Circuit Judges
(Filed: January 6, 2015)
_________
OPINION*
_________

PER CURIAM
Pro se appellant Alan Fabian, a federal prisoner currently confined at USP-

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

Lewisburg, appeals from an order of the United States District Court for the Middle
District of Pennsylvania dismissing his petition for habeas corpus under 28 U.S.C.
2241. We have jurisdiction over this appeal pursuant to 28 U.S.C. 1291, and we
exercise plenary review over the District Courts legal conclusions and review its factual
findings for clear error. See Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d
Cir. 2002). For the reasons set forth below, we will summarily affirm the District Courts
judgment. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.
In May 2008, Fabian pleaded guilty in the District of Maryland to mail fraud in
violation of 18 U.S.C. 1341 and making and subscribing a false tax return in violation
of 26 U.S.C. 7206(1). The Court sentenced him to 108 months imprisonment. The
charges arose out of what the District Court characterized at sentencing as a massive
fraud, which caused more than $20 million in loss. See D. Md. Cr. A. No. 07-355, dkt.
no. 151, at 56. Fabian did not appeal the judgment to the Fourth Circuit.
In 2009, Fabian filed a motion under 28 U.S.C. 2255 in the District of Maryland.
Fabian argued, among many other things, that the government had improperly amended
the indictment and that his due-process rights had been violated because the District
Court had failed both to compare his plea agreement to the indictment and to assure that
there were adequate facts to sustain the guilty plea. Each of these arguments was
premised on Fabians claim that, of the numerous institutions that he admitted to
defrauding, two Key Equipment Finance and Fleet Business Credit did not qualify
as financial institutions for purposes of the enhanced sentence in the mail-fraud statute.
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The District Court denied Fabians 2255 motion on the merits, United States v. Fabian,
798 F. Supp. 2d 647, 688 (D. Md. 2011), and the Fourth Circuit refused to issue a
certificate of appealability, United States v. Fabian, 461 F. Appx 244, 244-45 (4th Cir.
2012) (per curiam) (non-precedential).
Fabian next applied in the Fourth Circuit for permission to file a second 2255
motion. In his filing, Fabian alleged that he had discovered new evidence in support of
his earlier claims that Key Equipment Finance and Fleet Business Credit were not
financial institutions. The Fourth Circuit denied Fabians request. See 4th Cir. C.A. No.
13-105.
Fabian then filed the petition under 2241 that is at issue in this appeal. In this
petition, Fabian reasserted the improper-amendment and due-process claims that he
pressed in his initial 2255 motion, supporting them with the evidence he presented in
his request for permission to file a second 2255 motion. The District Court dismissed
Fabians petition for lack of jurisdiction, concluding that Fabians claims could be raised
only, if at all, in a 2255 motion. Fabian then filed a timely notice of appeal.
We agree with the District Courts disposition of this case. Motions pursuant to
28 U.S.C. 2255 are the presumptive means by which federal prisoners can challenge
their convictions or sentences[.] Okereke v. United States, 307 F.3d 117, 120 (3d Cir.
2002). As we have explained, under the explicit terms of 28 U.S.C. 2255, unless a
2255 motion would be inadequate or ineffective, a habeas corpus petition under
2241 cannot be entertained by the court. Cradle, 290 F.3d at 538 (quoting 2255(e)).
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A federal prisoner can seek relief under 28 U.S.C. 2241 if the remedy provided
by 28 U.S.C. 2255 is inadequate or ineffective to test the legality of his detention.
We have said this occurs where the petitioner demonstrates that some limitation of
scope or procedure would prevent a 2255 proceeding from affording him a full hearing
and adjudication of his . . . claims. Cradle, 290 F.3d at 538. This exception is extremely
narrow and applies in only rare circumstances. See In re Dorsainvil, 119 F.3d 245, 25152 (3d Cir. 1997).
Fabian cannot avail himself of the exception in this case. As noted above, he
presents the same claims in his 2241 petition that he previously presented in his 2255
motion. He may not use a 2241 petition to relitigate claims that were rejected in 2255
proceedings. See Queen v. Miner, 530 F.3d 253, 255 (3d Cir. 2008) (per curiam)
(holding that 2241 petitioner could not raise issues that either had been, or could have
been, decided in his previous habeas action). Moreover, while Fabian contends that he
has discovered new evidence concerning those claims, the appropriate vehicle to present
that new evidence is a request to file a second or successive 2255 motion; the fact that
the Fourth Circuit concluded that he failed to meet the stringent gatekeeping requirements
for filing a second 2255 motion does not mean that he may now proceed under 2241.
See Okereke, 307 F.3d at 120-21; see also Cradle, 290 F.3d at 538 (It is the inefficacy of
the remedy, not the personal inability to use it, that is determinative.). Thus, the District
Court did not err in dismissing Fabians 2241 petition.
Accordingly, we will summarily affirm the District Courts judgment.
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